World Court Digest

[pp. ] 69. The Court has reached the conclusion that there was no
agreement between South Africa and Botswana "regarding the ... application
of the [1890 Treaty]". This is in itself sufficient to dispose of the
matter. It is unnecessary to add that in 1984 and 1985 the two States had no
competence to conclude such an agreement, since at that time the United Nations
General Assembly had already terminated South Africa's Mandate over South West
Africa by resolution 2145 (XXI) of 27 October 1966, and the Security Council had
approved that measure by resolution 276 (1970) of 30 January 1970. The Court
itself, in its Advisory Opinion of 21 June 1971 on the Legal Consequences
for States of the Continued Presence of South Africa in Namibia (South West
Africa) notwithstanding Security Council Resolution 276 (1970), stated the
following in this regard:
"(1) ... the continued presence of South Africa in Namibia being
illegal, South Africa is under obligation to withdraw its administration from
Namibia immediately and thus put an end to its occupation of the Territory;

(2) ... States Members of the United Nations are under obligation to
recognize the illegality of South Africa's presence in Namibia and the
invalidity of its acts on behalf of or concerning Namibia, and to refrain from
any acts and in particular any dealings with the Government of South Africa
implying recognition of the legality of ... such presence and administration"
(I.C.J.Reports 1971, p. 58,para. 133).

Furthermore, the evidence indicates that the Botswana Government's
preliminary contacts with the President of the United Nations Council for
Namibia and the United Nations Commissioner for Namibia with a view to obtaining
their approval prior to the Pretoria meeting of 19 December 1984were
not pursued further, and did not have the result sought by Botswana.

[p. D.O. Fleischhauer] The Court should however have gone into
the conditions under which title to territory may be acquired by prescription,
far enough to state that South Africa could not have acquired title to the
Island by prescription. South Africa, whose presence in the Caprivi Strip
including the Island lasted longer than the presence there of Germany or
Britain, prior to the termination of the Mandate by the General Assembly in 1966
exercised authority there not à titre de souverain but à
titre de mandataire. As mandatory, South Africa certainly was vested by
virtue of the Mandate instrument of 17 December 1920 (League of Nations Journal
Officiel, 2nd Year, No. 1, p. 89) with the "full power of
administration and legislation over the territory subject to the present Mandate
as an integral portion of the Union of South Africa"; however, as the Court
observes in its Advisory Opinion an the International Status of South West
Africa (I.C.J. Reports 1950, p.128, at p. 132):

"On the other hand, the Mandatory was to observe a number of
obligations, and the Council of the League was to supervise the administration
and see to it that these obligations were fulfilled."

And the Court added:

"The terms of this Mandate, as well as the provisions of Article 22 of
the Covenant and the principles embodied therein, show that the creation of this
new international institution did not involve any cession of territory or
transfer of sovereignty to the Union of South Africa. The Union Government was
to exercise an international function of administration on behalf of the League,
with the object of promoting the well-being and development of the inhabitants."
(Ibid.)

This perception of the nature of the Mandate is incompatible with
acquisitive prescription working in favour of the Mandatory. After the
termination of the Mandate, the continued presence of South Africa in South West
Africa (Namibia) was no longer "peaceful", i.e., uncontested, as is
confirmed by Security Council resolution 276 (1970) and by the Courts Advisory
Opinion on the Legal Consequences for States of the Continued Presence of
South Africa in Namibia (South West Africa) notwithstanding Security Council
Resolution 276 (1970) (I.C.J. Reports 1971, p.16).

[pp. D.O. Parra-Anguren] 42. Consequently, after the
confirmation of the creation of the mandate by the Council of the League of
Nations in 1920, the Union of South Africa could not dispose by its own actions
of the territory of South West Africa, as it had been determined by the
subsequent practice of the parties to the 1890 Anglo-German Agreement.

43. For this reason, 1914 is the latest date to be taken into account for
the determination of the subsequent practice of the parties, Germany and Great
Britain, in regard to the interpretation of Article III of the 1890 Anglo-German
Agreement. In fact, no subsequent practice could exist on the part of Germany
after September 1914 when the Eastern Caprivi was occupied by Southern Rhodesia.
During the existence of the mandate the Union of South Africa had no competence
either to enter into any express agreement to delimit the international boundary
of South West Africa or to modify the prevailing subsequent practice with regard
to the interpretation of Article III of the 1890 Anglo-German Agreement.
Consequently, in my opinion, the subsequent practice of the parties for the
purpose of interpreting the Anglo-German Agreement should be determined on the
basis of the situation existing up to September 1914.